Caril Ann FUGATE, Appellant, v. Madolyn GAFFNEY, Appellee, 453 F.2d 362

PER CURIAM. Caril Ann Fugate, petitioner, appeals from an order denying her application for a writ of habeas corpus after a full evidentiary hearing. Petitioner is incarcerated pursuant to a 1958 conviction of first degree murder. The Federal District Court thoroughly analyzed this case and after an exhaustive review of our own we affirm the judgment of the District Court which amply sets forth the relevant facts. Fugate v. Gaffney, 313 F.Supp. 128 (D.Neb.1970).

While petitioner might be entitled to some sympathy because of her age at the time the acts were committed, we note that she is eligible for parole but will not seek such relief so long as she can bring any federal court action. Briefly the facts as found below are that Caril Ann Fugate and one Charles Starkweather were involved in a series of killings, most of which took place in and around Lincoln, Nebraska. At the time she was apprehended in Wyoming, Caril talked freely to the officer who had her in custody.

Caril was told by Elmer Scheele, the county attorney for Lancaster County, Nebraska, while she was in jail in Wyoming, that murder charges were pending against her in Lincoln, Nebraska. She was advised by the same person that another charge might be filed. After a short discussion, petitioner consented to and signed a waiver of extradition. She was then transported by automobile to Lincoln, Nebraska. During this trip there was a discussion between petitioner and Mrs. Gertrude Karnopp, the wife of the sheriff of Lancaster County, concerning the killings.

Petitioner was taken to the State Hospital near Lincoln because the county jail did not have facilities for her detention. On February 1, 1958 Caril was interviewed by Dale E. Fahrnbruch, a deputy county attorney. Several persons were present. Caril was told by Mr.

Fahrn-bruch that she had been charged with first degree murder for the killing of Carol King and that she might be prosecuted for another killing; that she had a right to a lawyer but he had no way of providing her with one; and that if she were bound over to the District Court for trial and did not have sufficient funds a lawyer could be appointed for her. Mr. Fahrnbruch told Caril that anything she said could be used against her in court and that she did not have to talk with him if she did not want to. Caril answered his questions.

Petitioner’s father and sister visited with her the next morning, February 2, 1958, and that evening, in the presence of Mrs. Karnopp, Dr. Coats and a court reporter, Audrey Wheeler, a question and answer statement was taken from petitioner by Mr. Fahrnbruch. The statement was completed the following morning, February 3, 1958. When the statement was completed, arraignment was explained to petitioner and she was arraigned shortly thereafter. She entered a plea of not guilty and a date for preliminary hearing was set.

On February 5, 1958 the transcribed question and answer statement of February 2 and 3 was read to petitioner in the presence, among others, of Dean Belsheim of the Nebraska Law School and William D. Blue, an attorney, upon whose advice petitioner did not sign the statement. The Federal District Court found all of the statements were voluntary. The District Court found that about the time of the arraignment petitioner filed a motion and affidavit stating that she was without funds or resources to obtain counsel and requested the court to appoint an attorney to defend her.

Petitioner left the selection of an attorney to the court. Pursuant to this request Nebraska District Court Judge Harry A. Spencer appointed John H. McArthur. Mr. McArthur asked Mr. Reller, a lawyer with whom he frequently worked, to assist him. Thereafter Mr. Reller assisted in preparing petitioner’s case. On the morning of the trial Mr. Reller sat in the counsel’s chair whereupon Judge Spencer called Mr. Reller into his chambers and explained to him that Mr. McArthur was petitioner’s officially appointed counsel and was to conduct the trial. He advised Mr. Reller that he could sit behind Mr.

McArthur and advise him in any way he desired, which in fact Mr. Reller did even to the point of participating in discussions held in chambers. There was no showing that Judge Spencer was ever advised that Mr. Reller was working on the case or that he was even requested to appoint Mr. Reller as co-counsel. On the basis of these facts, the District Court held that petitioner had not shown she was denied any of her constitutional rights regarding her right to counsel at the trial.

On appeal petitioner asserts as error that her statements were inadmissible at the trial; that she was denied effective assistance of counsel; and that she was denied a fair trial by a panel of impartial jurors. As to petitioner’s contention that her statements were not voluntary and hence not admissible, the burden was upon petitioner to establish’by convincing evidence that the factual determination by the state court was erroneous. In re Parker, 423 F.2d 1021 (8th Cir. 1970), cert, denied, Parker v. South Dakota, 398 U.S. 966, 90 S.Ct. 2182, 26 L.Ed.2d 551 (1970).

The Federal District Court found that petitioner’s statements and admissions were voluntary and that their use at her trial did not deprive her of any of her constitutional rights. After thoroughly reviewing the district court’s findings and the evidence, we have come to the conclusion that the Federal District Court was correct and that its findings on this point are not clearly erroneous. Tyler v. Beto, 391 F.2d 993 (5th Cir. 1968), cert, denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574 (1969). Applying the “totality of the circumstances” test, which was the test for voluntariness in 1958, see Clewis v.

Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967), we hold that the statements were admissible. We do not regard Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), as controlling since that case dealt with postindictment interrogation and has been held not to apply retroactively. United States ex rel. Allison v. New Jersey, 418 F.2d 332 (3rd Cir. 1969), cert, denied, 400 U.S. 850, 91 S.Ct. 68, 27 L.Ed.2d 88 (1970).

In support of her argument that she was denied effective assistance of counsel, petitioner argues that the trial court denied her counsel of her own choice with whom she had made arrangements to represent her. The facts as found by the District Court regarding this contention are set out at the beginning of this opinion and are not challenged by petitioner on this appeal. We point out specifically that the trial court was never at any time asked to appoint Mr. Reller and was never informed of any “arrangement” between petitioner and Mr. Reller.

Although petitioner complains of “the refusal of the court to allow counsel satisfactory both to the accused and her appointed counsel to voluntarily assist in the case . . . ”, it nowhere appears that the court was asked to allow such arrangement. No objection was made to the trial court regarding the matter. Mr. Reller admitted that he did not seek appointment by the court as petitioner’s attorney. Mr. Rel-ler was allowed to and did advise court-appointed counsel throughout the trial. Mr.

McArthur testified that he could not think of anything that prejudiced his representation of petitioner that could be attributed to Mr. Reller’s not being permitted to conduct the voir dire, examine witnesses or make objections. The evidence supports the finding of the District Court that petitioner was not denied trial counsel of her selection. Petitioner alleges that one of the jurors had made a bet as to the outcome of her trial and thus was not an impartial or indifferent juror.

The essence of the holding of the Federal District Court is that the juror had an opinion which he expressed in “bet” terminology; that the juror made a fair disclosure of his earlier opinion on voir dire and was not challenged; and that he set aside his earlier opinion before he commenced service as a juror. Affidavits were presented by both sides and the matter was resolved against petitioner as it had been by the Supreme Court of Nebraska. See Fugate v. State, 169 Neb. 420, 99 N.W.2d 868 (1959). On this record we cannot say that any error was committed in resolving the issue against petitioner.

Accordingly, the judgment is affirmed. . Judge Spencer has subsequently been elevated and is presently a member of the Nebraska Supreme Court.